NLRB Suspends Posting Requirement Once Again

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NLRB, posting requirement

By: Sam G. Sherman, Esq.

The NLRB has once again postponed its order requiring employers to post a notice concerning employees’ right to collectively bargain.  In October, the NLRB issued a final ruling requiring employers to post the notice by November 14, 2011.  A few days later, the NLRB extended the deadline to January 31, 2012.  Then, on December 23, 2011, the NLRB extended the deadline to April 30, 2012. 

Yesterday, the NLRB chairman indefinitely postponed the posting requirement and provided the following statement:  “In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.

“In view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”

The full text of the press release can be found here.

Sam Sherman On NBC News Discussing Brinker–The California Supreme Court’s Groundbreaking Meal and Rest Break Decision

By: Sam G. Sherman, Esq.

Sam Sherman with Higgs, Fletcher & Mack was recently quoted by NBC news discussing the Brinker decision that we wrote about last week. 

 

Supreme Court Decides Brinker–Employers Must Merely Provide Breaks

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Brinker, ensure meal breaks taken, provide meal breaks, rest break, rolling meal break, when meal break taken, when rest break taken

By:  Sam G. Sherman, Esq.

The California Supreme Court decided Brinker Restaurant Corp. v.  Sup. Ct. today.  Of course, employers throughout the state have been watching this case closely and waiting to see whether the Supreme Court would require employers to “ensure” employees take meal breaks, or merely “provide” employees with those breaks. 

Ultimately, the Court decided the following:

1. Employers are obligated to afford hourly employees meal and rest periods and to relieve employees of all duties during those meal and rest periods.  However, the employer must not “ensure” an employee actually takes a break or that the employee performs no work during the break.  The employee is at liberty to use the break for whatever purpose he or she desires.
2. A first meal period must generally fall no later than five hours into an employee’s shift and a second meal break provided after no more than ten hours of work.  However, an employer has no obligation to schedule meal breaks at five hour intervals throughout the shift.
3. Concerning rest breaks, an employee is entitled to a 10 minute rest break for shifts lasting from three and one-half hours to six hours in length.  An employer must provide a second rest break for shifts from six hours to ten hours in length. 
4. Employers need only use good-faith to give required rest periods in the middle of shift, but “may deviate from that preferred course where practical considerations render it feasible.”

This is a significant win for employers.  As many predicted, the Court did not impose a rule requiring employers to ensure its employees perform no work during meal and rest breaks.  That being said, employers must carefully review their employee handbooks and internal policies to ensure the timing of meal and rest breaks complies with the Court’s order.

Employers can Schedule Split Shifts (Sometimes) Without Paying Penalty

By:  Sam G. Sherman, Esq.

In Aleman v. Airtouch Cellular the Second District Court of Appeals issued a win for employers interested in scheduling hourly employees for split shifts.  California’s wage orders define a split shift as “a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.”  The wage orders state: “When an employee works a split shift, one (1) hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday…”  Many employers avoid scheduling split shifts due to the cost of paying the extra hour of compensation. 

Plaintiff inAlemancontended he was due an extra hour of compensation for five separate days that his employer required him to work a split shift.  Airtouch defended by claiming that, since the amount it paid Aleman exceeded the minimum wage plus the split shift differential, it owed him no additional compensation.  The Court agreed and denied plaintiff any recovery. 

Whether Aleman allows an employer to schedule split shifts without paying the additional hour of compensation is, obviously, a function of the hourly rate and the length of the shift.  We certainly recommend contacting an attorney to determine whether Aleman prevents your company from having to pay a split shift differential before scheduling such shifts.

US Labor Department, California sign agreement to reduce independent contractor misclassification

By:  Sam G. Sherman, Esq.

On February 9, 2012, the U.S. Department of Labor and California’s secretary of labor entered into a memorandum of understanding regarding the misclassification of employees as independent contractors.  The goal is to continue to target, and eliminate, employee misclassification.  The press release can be found here.

At this point, it is unclear how the memorandum of understanding will impact employers.  The press release merely indicates that the two agencies will “embark on new efforts” to prevent misclassification, but does not hint at what those new efforts will involve. 

Ultimately, the issue remains the same–avoid misclassifying workers as independent contractors.  It can lead to civil penalties, back taxes, back wages (including overtime pay and damages for missed breaks), and unemployment insurance.  It is always a good idea to retain an employment attorney to audit the relationship with the independent contractor to determine if an employment relationship exists.

GOOD LORD!!! Church Can Fire Employee for Living with Boyfriend Out of Wedlock

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employment, fair employment and housing act, FEHA, marriage, religious discrimination, religious organization, san diego, termination, wedlock

By: Sam G. Sherman, Esq.

Many employers feel that the law has gone so far that they cannot fire any employee for anything without risking liability.  Not always true.  The Fourth District Court of Appeals recently decided that a church can fire an employee for living with her boyfriend and raising their child together out of wedlock. 

Henry v. Red Hill Evangelical Lutheran Church of Tustin involved a female employee teaching in the Church’s preschool.  Henry was married at the time she applied for the position (2002).  She divorced in 2007 and later gave birth to a child fathered by her boyfriend.  While pregnant, she told the church that she intended to marry her boyfriend, but was not yet ready to do so. 

In 2008, the school’s principal overheard a group of parents talking about the fact that Henry was raising her child and living with her boyfriend out of wedlock.  The principal met with Henry and asked her about the situation.  She told the principal that she intended to marry her boyfriend, but was not sure when that would happen.  She was later terminated expressly for living with her boyfriend and raising their child together out of wedlock, which was inimical to the church’s religious beliefs.

Henry sued claiming her termination violated federal and state law.  The Court quickly disposed of these claims finding that both California and federal law exempts religious organizations from its definition of “employer.”   The court even rejected Henry’s common law claim for wrongful termination in violation of public policy on this basis. 

While this decision has no impact on 99% of employers, the fact pattern alone required inclusion in the blog.

Employers Need Not Accommodate Unqualified Employees

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accommodation, Disability Discrimination, employment, employment law

By: Sam G. Sherman, Esq. A federal district court in Johnson v. Board of Trustees of the Boundary County School District No. 101, recently clarified the circumstances under which an employer must accommodate a disabled employee or job applicant. The Court ultimately found that the employer need not accommodate an employee in obtaining the qualifications necessary to perform the job. Federal law prohibits an employer from discriminating against disabled employees. To prevail in a claim for disability discrimination, an employee must establish that they are a “qualified individual with a disability.” Federal Courts traditionally apply a two-part test to determine whether an employee is a “qualified individual.” First, the employee must establish that they satisfy the “requisite skills, experience, education and other job-related requirements of the employment position” they hold or desire. If they do, then they must establish whether, with or without accommodation, they can perform the essential functions of the position. The issue in Johnson was whether the employer must provide the employee an accommodation to satisfy the first test–whether the employee has the requisite “skill, experience, education or other requirements” of the job. The Court found that the employer is under no such obligation. It is only after the employee establishes that they possess the requisite qualifications of the job that the employer must provide reasonable accommodation so that the employee can actually perform the job. The example given in Johnson involved an applicant for a job as an attorney. A visually impaired applicant lacking a law degree or bar certification is not entitled to have the employer assist him or her in obtaining that degree or certification. However, if the employee has the requisite degree and certification, but merely requires a larger monitor to perform the job, the employer has the obligation to provide the larger monitor if it is reasonable under the circumstances.

Arbitration Clauses in Employment Contracts–Are They Ever Enforceable?

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arbitration, arbitration agreement, arbitration clause, employment contract

By: Sam G. Sherman, Esq.

Many employers include arbitration agreements in offer letters, employment agreements, or as part of a packet of pre-employment documents given to employees for signature.  Many of those same employers are left frustrated when courts refuse to enforce the very arbitration agreement they have paid lawyers thousands of dollars to draft (or agreements that the employer pulled off the internet in an effort to save lawyers’ fees).

A California Appellate Court in Sacramento recently issued a decision summarizing the steps an employer must take to ensure the enforceability of its arbitration agreement.  First, make sure to explain to the employee that submitting to arbitration is not a condition of employment and that it is completely negotiable.  Second, provide the employee with the arbitration rules.  Third, take the time to explain the arbitration provision–and its ramifications–to the employee.  Finally, the agreement must be mutual in obligating the employee to arbitrate his or her disputes with the employer as well as requiring the employer to arbitrate its disputes with the employee. 

For employers, the first step is to review your arbitration provision (preferably with a lawyer) to ensure it complies with the law.  Next, review your internal procedures to ensure those comply with the law.  There is no point in having a good arbitration provision if you aren’t implementing it properly.  Finally, if you discover that your previous arbitration clause or your procedures for communicating that clause failed to comply with the law, then consider re-drafting and obtaining new signatures from employees.  It is cheaper to get it right then to litigate a bad arbitration provision.

DLSE Publishes Template for Information Employers Must Provide Employees Hired After January 1, 2012

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AB 469, DLSE, Notice

By: Sam G. Sherman

Governor Brown recently signed AB 469, which requires employers to provide employees certain information at the time of hire.  Employers must provide this information to all employees hired after January 1, 2011.  The DLSE has provided a template for employers to use to comply with the act, as well as a “frequently asked questions” page.  Both can be found here.   

Feel free to call or write if you have any questions about implementing this new procedure.

Supreme Court Delays Ruling in Landmark Meal and Rest Break Case

By: Sam G. Sherman, Esq.

Most California employers are waiting patiently for the California Supreme Court to issue its ruling in Brinker v. Superior Court.  As we posted a few weeks ago, the main issue in that case is whether an employer must ensure that its employees take their breaks or merely provide those breaks to employees. 

The Supreme court heard oral argument on November 8, 2011, which would have required the court to issue a ruling by February 6, 2012.  However, the court threw the parties a proverbial curve ball on December 14, 2011 when it vacated the ruling submitting the matter for decision. 

Specifically, the Court’s December 14, 2011 order re-opened the case to allow the parties to argue whether any decision should only apply in the future or apply retroactively (and allow plaintiff’s to use the decision to allege past violations).  Most observers believe the retroactivity analysis concerns the rolling five-hour issue (whether an employer must provide a meal break within the first five hours of the work day) and not the provide v. ensure issue. 

The Court’s order allows the parties 30 days to submit additional briefing.  The Court must then issue a ruling by April 12, 2012.